APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 699-738, DIVISION
"J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, CANDIDO PERDOMO Anthony L.
Glorioso D. Steven Wanko, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, CITY OF KENNER Michael D.
Peytavin William D. Dunn
COUNSEL FOR DEFENDANT/APPELLEE, VEOLIA WATER NORTH
AMERICA-SOUTH, LLC Robert E. Kerrigan, Jr. Raymond C. Lewis
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Robert A. Chaisson
M. CHEHARDY CHIEF JUDGE
Candido Perdomo, appeals the district court's July 5,
2017 judgment granting summary judgment and dismissing with
prejudice Mr. Perdomo's claims against defendants, City
of Kenner and Veolia Water North America-South, LLC. After
our de novo review, we find plaintiff is entitled to
relief, reverse the judgment of the district court, and
remand the matter for further proceedings.
AND PROCEDURAL HISTORY
March 25, 2011, Mr. Perdomo filed suit against the City of
Kenner and Veolia Water North America-South, LLC seeking
damages for injuries he sustained on May 11, 2010 while
employed by Ramelli Janitorial Service as a garbage
"hopper" collecting garbage for the City of
Kenner. Mr. Perdomo was injured when a portion of
the concrete surface on 27th Street near the intersection of
Salem Street collapsed underneath the right rear wheels of
the garbage truck on which he was riding.
discovery, Kenner and Veolia moved for summary judgment,
arguing that Mr. Perdomo could not succeed on his cause of
action because he could not satisfy his burden of proving the
element of notice as required by La. R.S. 9:2800 and La.
C.C. art. 2317. In support of its motion for summary
judgment, Kenner submitted an affidavit of Jerry
Dillenkoffer, the Assistant Director of Public Works for the
City of Kenner, and an affidavit of Joanne Massony, a project
manager with Veolia. Similarly, Veolia submitted in support
of its motion the Massony and Dillenkoffer affidavits, a
deposition of Ms. Massony, and a deposition of Dennis Dufour,
a maintenance manager with Veolia.
support of his opposition to Kenner and Veolia's motions
for summary judgment, Mr. Perdomo submitted the Massony and
Dufour depositions, a deposition of Mr. Dillenkoffer, a July
2009 newspaper article, an affidavit and deposition of Scott
Troxclair, as well as affidavits of Josette White, Alisha
Hamilton, Natalie Thomas, and Terri Williams.
Dillenkoffer's affidavit and deposition, he explained
that along with the Kenner Police Department, the Weights and
Standards Division of the Department of Public Safety
investigated the scene of the accident. Through this
investigation, it was determined that the rear axle of the
garbage truck was overweight by 4, 700 pounds.
Dillenkoffer, through his inspection of the scene, observed a
leaking sewer line that he believed caused the street's
collapse. Mr. Troxclair, a plumber retained by plaintiff,
also examined the scene of the accident and similarly opined
that the leaking sewer line had eroded the subsurface of the
street and led to its collapse. He inferred from the extent
of the subsurface erosion that the leak must have been
ongoing for quite some time.
Dillenkoffer explained that the Kenner Department of Public
Works does not have a plan for periodic inspections of public
streets and the department relies on citizen complaints as
the primary means of identifying issues with infrastructure.
Prior to the accident, Mr. Dillenkoffer was not aware of any
complaints of potholes, sinkholes, or any other issues with
the surface of 27th Street at this location. He also attested
that city complaint logs do not reflect any complaints about
the condition of the street or sewerage near the accident
Dillenkoffer further stated that the department did not
operate or maintain the Kenner sewerage system in 2010, as
Veolia was under contract to operate and maintain the Kenner
sewer system since 1995.
affidavit and deposition of Joanne Massony, a project manager
with Veolia, Ms. Massony explained that Veolia had received
no complaints of potholes, sinkholes, or any sewerage-related
issues at the 27th Street location prior to the accident. Ms.
Massony added that Veolia routinely inspects the sewerage
lift stations throughout Kenner on a weekly basis. This
accident occurred immediately adjacent to Lift Station No.
4341. The weekly inspections of this lift station did not
reveal anything to suggest that the system was in disrepair
or was creating a condition that would compromise the
structural integrity of the street surface. In fact, Dennis
Dufour of Veolia confirmed that the weekly inspection of
Station 4341 was completed the day before the accident, on
May 10, 2010. This inspection revealed no problems with the
system. The lift stations are also outfitted with a wireless
notification system designed to provide real-time diagnostics
on the stations. This system never alerted Veolia to any
potential issues with Station 4341 prior to the accident.
a leaking sewer line, Ms. Massony explained that "the
only way" Veolia would discover such a leak would be
"through people calling or visually
seeing…subsidence" that would prompt Veolia to
further investigate and test for leaks.
Massony added that impellers on one of the pumps in Station
4341 had been replaced in February 2010 due to normal wear
and tear. At the time of this replacement, there were no
observations of any potential problems or subsurface
conditions that suggested the street was susceptible to
Massony also explained that in June 2005, Veolia received a
request from the Department of Public Works to inspect a
sewer line on 27th Street because subsidence had been
observed on the opposite side of the street from the accident
site. Veolia's inspection revealed no issues with the
sewer line, but it was determined that a potable water line,
a responsibility of Jefferson Parish, was a contributing
factor to the subsidence. Repairs were made at that time.
July 2009 newspaper article offered by Mr. Perdomo reported
the commencement of an infrastructure project to rebuild
Kenner's sewer system because, as the newspaper quoted
Deputy Chief Administrative Officer, Prat Reddy, "We
have reached a sewerage crisis in Kenner[.]" Allan Katz,
Kenner Ready to Embark on $15 Million Phase I Rebuilding
of Sewage System, Kenner Star, July 2009, Vol. 18 No. 7,
White, Ms. Hamilton, Ms. Thomas, and Ms. Williams all resided
near the site at the time of the accident. They all stated in
their affidavits that the ground adjacent to the street near
the accident site had been "soggy" prior to the
accident, and all except Ms. Hamilton reported foul sewage
odors emanating from the area around the site before the
accident. Along with her complaint about sewage odors, Ms.
White had also lodged a complaint with the City of Kenner
about the backup of sewage in her home.
Massony acknowledged that Veolia had received several odor
complaints from residents near the accident site, but that no
issues were found with the sewerage system during the
inspections made in response to these complaints. Mr.
Troxclair explained in his deposition that even properly
operating lift stations commonly emit sewage odors. Ms.
Thomas and Ms. Williams further recounted that a large crack
in the street surface had formed near the site, and Ms.
Thomas recalled that it had been patched on two occasions
prior to the accident.
conclusion of the hearing on the motions for summary judgment
on June 19, 2017, the district court granted summary judgment
in favor of Kenner and Veolia. The court found that Mr.
Perdomo could not prove the notice element of his claim. In
the signed judgment that followed on July 5, 2017, the court
granted summary judgment in favor of Kenner and Veolia and
dismissed with prejudice Mr. Perdomo's claims against
17, 2017, Mr. Perdomo filed a motion for new trial, arguing
that the court's judgment was contrary to the law and
evidence. Following a hearing on August 18, 2017, the
district court denied this motion in a judgment dated
September 19, 2017. Mr. Perdomo ...